Supreme Court Sends Affirmative Action Case To Lower Court

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The U.S. Supreme Court surprised just about everyone yesterday with its decision on affirmative action in higher education. That surprise was an apparent compromise that leaves affirmative action programs intact for now but subjects them to a more rigorous review by the courts.

NINA TOTENBERG, BYLINE: In 2003, the Supreme Court reaffirmed that colleges and universities may use race as one of many factors in college admissions. So when only nine years later, a new and more conservative court agreed to revisit the issue, and with Justice Elena Kagan recused from the case, supporters of affirmative action thought they were cooked. The best case scenario they predicted was for a tie vote.

Instead on Monday, the justices, by a seven to one vote, upheld the concept of affirmative action in university admissions, but the court sent the case from the University of Texas back to the lower courts.

Writing for the court majority, Justice Anthony Kennedy said that the educational interest in a diverse student body in higher education may justify some consideration of race. But Kennedy said race-conscious admissions are only permissible when no race-neutral measure is able to achieve sufficient diversity and when the affirmative action program is as narrowly drawn as possible.

So did the University of Texas program meet these criteria? The justices did not say. Instead they sent the case back to the lower courts to conduct that fact-intensive inquiry.

TOTENBERG: That's University of Texas president Bill Powers speaking yesterday. But Abigail Fisher, the white woman who was denied admission and challenged the university's affirmative action program, disagreed.

ABIGAIL FISHER: I'm very confident that UT won't be able to use race in the future.

TOTENBERG: That may be so ultimately, but for now, experts of all ideological stripes see the battle as nowhere near over. Indeed, yesterday's ruling, while telling lower courts to examine any use of race in admissions with the most skeptical eye, still left ample room to permit the continued use of race as a so-called plus factor, in much the same way that athletic ability and musical talent are used as plus factors.

The reaction among university leaders was clear relief. Typical was this, from Brit Kirwan, chancellor of the University of Maryland system.

BRIT KIRWAN: As a person who believes there's still a need for affirmative action in higher education, I was relieved by the decision. I see it as a reprieve of sorts.

TOTENBERG: But Edward Blum, the man who helped put together Abigail Fisher's challenge in Texas, issued this not-so-veiled threat.

EDWARD BLUM: Those universities that continue using race-based affirmative action will likely find themselves embroiled in costly and polarizing litigation.

TOTENBERG: It may well take another visit to the Supreme Court to shake out the issue, but for now, most experts of all stripes said they expect affirmative action programs to remain intact.

Robert Schapiro is dean of Emory University Law School.

ROBERT SCHAPIRO: The court leaves the status quo pretty much as is and allows affirmative action as it now exists to continue.

EUGENE VOLOKH: My guess is that universities won't really change their actions much in light of this decision. But, I do think that lower courts might change their approach in some measures.

TOTENBERG: The seven-to-one vote in the Texas case appears to have been a compromise between the court's liberal and conservative camps.

Richard Kahlenberg, a senior fellow at The Twentieth Century Foundation, admitted to being puzzled by the lopsided majority.

RICHARD KAHLENBERG: The only thing I can think of at the moment is some sort of deal between the justices in which the liberals agreed to a new tougher standard and Justice Kennedy agreed to procedurally to send this back for more review.

TOTENBERG: Stanford Law School's Michael McConnell had a slightly different take.

MICHAEL MCCONNELL: It is true that it's easier to obtain consensus on the court when you say less rather than when you say more.

TOTENBERG: Harvard Law School's Charles Fried, who served as solicitor general in the Reagan administration, saw the vote as a way to avoid any quote, "radical overturning" of the court's past decisions.

CHARLES FRIED: I think it was a vote for continuity and a vote for a kind of a cautious approach.

TOTENBERG: The lone dissenter yesterday was Justice Ruth Bader Ginsburg. She would have upheld the University of Texas program without returning it to the lower courts for further review.

Two other justices - conservatives Clarence Thomas and Antonin Scalia - wrote separately to say that while they joined yesterday's decision, they would have gone farther and barred any consideration of race, ever.